Friday, May 13, 2011

After two decades of battling se- vere anorexia that often landed her in the emergency room, Jeanene Harlick finally entered an intensive treatment program at the recommendation of her doctor in 2006.

The residential facility in St. Louis, Mo. offered around-the-clock care from medical and psychiatric experts. The only problem was whether Harlick's health insurance plan covered such treatment.

Ultimately, Blue Shield of California denied paying for all but 11 days of her 191-day stint at the facility because it said her policy did not include residential treatment.

A lawsuit filed by Harlick has added to the growing debate over whether health plans are required to pay for such costly therapies under the state's Mental Health Parity Act, which mandates that health plans offer mental health coverage compa- rable to physical health services.

Though a trial judge sided with Blue Shield, an appeal in Harlick's case is being brought before the 9th U.S. Circuit Court of Appeals today. Mental health professionals say a win by the plan could embolden oth- ers that offer residential care to drop coverage.

Attorney Lisa Kantor, who rep- resents Harlick, argues the plan must cover residential treatment for anorexia in the same way that it would cover her time in a skilled nursing facility if her ailment were solely physical, no matter the policy language. "Blue Shield could write in its plan three, ten or twenty times that 'resi- dential care is not covered' but this statement violates the Mental Health Parity Act and this court should not allow Blue Shield to deny treatment on this basis," wrote Kantor, of Kan- tor & Kantor LLP, in trial briefs at the appellate court. Blue Shield's lawyer, Gregory Pim- stone of Manatt, Phelps & Phillips, LLP, was unavailable for comment.

Blue Shield argued in appellate briefs that the Legislature never intended to mandate residential coverage when it created the Mental Health Parity Act in 1999.

The lower court noted that Harlick's plan explicitly stated residen- tial care is not covered, sidestepping the broader issue of whether such policy provisions are legal under state law.

Attorneys who specialize in mental health parity cases hope the appellate court takes up that larger question. Because Harlick's plan falls under the Employees Retirement Income Security Act, she could face an uphill battle, according to Bryan Liang, executive director of the Institute of Health Law Studies at the California Western School of Law. "In other cases, courts have held that state mental health parity acts are pre-empted by ERISA when considering ERISA plan administra- tion," Liang said.

Brietta Clark, a health law profes- sor at Loyola Law School, said the court should look into whether there is a structural bias against treat- ing mental health conditions. She pointed to the fact that the contract providesfcoveragefor skilled nursing care, but not for a similar facility that goes through a different licensing to provide mental health services. "When courts see the dispute as merely about contract terms, they're never going to get to the deeper ques- tion," Clark said. "There is really an inequity here being masked by these neutral labels, and it's the court's job to figure them out."

This case could affect the interpretation of other mental health condi- tions that require residential care, such as homes that treat emotionally disturbed children, as well as eat- ing disorder clinics, many of whose operators fear that if other plans fol- low suit, their clinics could be put in jeopardy.